Effective 1/1/70, where the marriage relationship was not valid because there was a prior undissolved marriage, a marriage becomes valid when the prior marriage is dissolved if, since that time, the parties
have lived together as husband and wife and presented themselves to others as being
married.
QUESTION
You have asked whether Karamsinh (the NH), who resides in Texas, and Jalanben , who
resides in Illinois, obtained a valid marriage and divorce in India to determine Jalanben
eligibility for divorced spouse’s benefits. [6]
ANSWER
We believe that the State of Texas would apply the laws of India in determining the
validity of the NH’s and Jalanben marriage and divorce. [7] Based on information obtained in a new report from the Law Library of Congress, we
believe that the NH and Jalanben had a valid Hindu marriage beginning on May 27, 1951,
which ended in divorce in December 1969.
BACKGROUND
In August 2009, the NH, who resides in Texas, filed an application for retirement
insurance benefits under Title II of the Social Security Act (Act) and reported that
he was presently married to Urmillawat Karamsinh, whom he had married on June 25,
1973. The NH was born August . He reported that he had no previous marriages that
lasted 10 years or more or ended in death; however, in the remarks portion of the
application, he stated that he “had a pre-arranged marriage as a child in India,”
and that “the marriage was resolved in 1969.” The Social Security Administration (agency)
granted the NH’s application for retirement benefits.
In February 2011, Jalanben, who resides in Illinois, filed an application for divorced
spouse’s benefits on the NH’s account. Jalanben was born February. In her application,
Jalanben stated she was not presently married, but that she had a prior marriage to
the NH on May 27, 1951, and that the marriage ended in divorce on December 12, 1969,
in India.
In this case, there is no preferred proof of marriage or divorce. Thus, the agency
has appropriately developed secondary evidence as to both the marriage and divorce.
[8] See Program Operations Manual System (POMS) POMS GN 00305.025 (secondary proof of ceremonial marriage), GN 00305.140 (proof of marriage termination – general), GN 00305.170 (determining validity of divorce). The agency contacted the NH to obtain assistance
in establishing Jalanben entitlement to divorced spouse’s benefits, and the NH provided
two statements (Form SSA-795) dated August 15, 2011, and May 29, 2012, detailing his
marriage to and divorce from Jalanben in India. [9] In these forms, the NH stated that he and Jalanben married on May 27, 1951, during
an arranged Hindu marriage ceremony in India when they were children. According to
the dates of birth and the date of the marriage ceremony (May 27, 1951), the NH was
7 years old and Jalanben was 6 years old at the time of this first ceremony. The NH
explained that in accordance with their village customs, their fathers arranged the
marriage and that all guardians freely consented to the arranged marriage. The NH
explained that he and Jalanben were not blood relatives, and that they were not married
to others at the time of their marriage. The NH stated that the marriage and ceremonies
were in accordance with Shastric Hindu requirements and with customs of the NH’s and
Jalanben caste ( Rabari) and community customs.
Regarding the first ceremony, in his August 2011 statement, the NH referred to this
1951 ceremony as “the original promise ceremony.” In his May 2012 statement, the NH
explained that the 1951 ceremony was an elaborate solemnized marriage ceremony conducted
by a Hindu priest in accordance with Shastric Hindu requirements, and which involved
the seven vows of the saptapadi. He offered details of this ceremony. The NH explained
that he and Jalanben were considered married, as opposed to engaged, following this
1951 ceremony.
Regarding the second ceremony, the NH stated that he and Jalanben underwent a second
ceremony in India in 1958 or 1959, after which time they began living together as
husband and wife with the NH’s family in India. The NH explained that the second ceremony
is performed after the girl is over 13 years of age and as a celebration of her leaving
her home to live with the boy’s family. The NH stated that the second ceremony was
also a required solemnized ceremony that a Hindu priest conducted in accordance with
Shastric Hindu requirements. He offered details of this second ceremony. The NH and
Jalanben had a son in 1964.
In his August 2011 statement, the NH stated that in 1969 when he wanted to leave India
and move to the United States, he and Jalanben made “a declaration of divorce” to
their community leaders. The NH stated that there was no government record of the
divorce, no deed of release, or any paperwork documenting the divorce, only “the declaration
[of divorce] of the community.” In his May 2012 statement, he offered more details
of the divorce and of the divorce customs in his tribe. The NH stated that he and
Jalanben both agreed to the divorce because “it was not working at all.” In this statement,
the NH reported that at the time of their divorce on “approximately” December 12,
1969, he had already begun to live in the United States and that Jalanben had continued
to live with his family in India. The NH stated that his family rejected him following
the divorce and said he was “dead” to them, but that his family told Jalanben that
she was their daughter and should continue to live in their household. The NH stated
that after the divorce in 1969 and his move to the United States, Jalanben continued
to live with their son and the NH’s family in India for many years. The NH stated
that Jalanben “always lived at the family home – my family home. Now she is living
with our son. She lived in the Karamsinh family home more than 30 years and it is
always considered as her own home.”
In his August 2011 statement, the NH stated that years later when his son wanted to
move to the United States, the NH had to travel back to India and “verify that there
was no legal document” of the marriage or divorce. We assume the NH needed the affidavits
to establish his legal relationship with his son in order to allow his son to come
to the United States. At that time, the NH stated that he asked family friends who
were present at the marriage and divorce to prepare affidavits attesting to these
events. These affidavits, described below, were submitted to the agency as evidence
of the marriage and divorce between the NH and Jalanben.
On December 1, 1990, two of the NH’s relatives provided a signed “Affidavit of Marriage
of Karamsinh and Jalanben ,” containing the signature and seal of an Executive Magistrate
in Sidhpur, India, to provide proof of the marriage between the NH and Jalanben because
there was no registration of the marriage with India’s government. The relatives provided
this declaration stating that they witnessed the May 27, 1951 marriage ceremony of
the NH and Jalanben in Bokarwada, Taluka Visnagar, Dist. Mehsana, Gujarat State. Further,
they stated that “several Hindu Brahmin Priests had solemnized the marriage ceremony”
of the NH and Jalanben “along with several marriageable couples who came there for
their marriage in a customary group marriage as is a custom with our shepherd community.”
Finally, they stated that it was not customary in those days to register the “marriages
of our castes” in the Government Register.
On July 7, 1993, the same two relatives provided a signed “Affidavit of Divorce” containing
the signature and seal of an Executive Magistrate in Mehsana, India, to provide the
facts of the divorce of the NH and Jalanben because there was no legal court certificate
reflecting the divorce. The relatives provided this declaration stating that they
had witnessed the May 27, 1951 marriage ceremony; that the NH and Jalanben had a son
on June 1, 1964; that the marriage of the NH and Jalanben lasted from 1951 to 1969;
that the marriage ended in 1969 before the NH moved to the United States; that the
NH and Jalanben agreed that their son would stay with Jalanben in India until he became
an adult; and that the NH would have responsibility for their son once he became an
adult. Further, they stated that “it is customary to decide and declare the validity
or otherwise of the marriages and the divorces in the community by community leaders,
and as the decisions on marriages and divorces are taken periodically and in the groups,
the legal court certificate of divorce is not available in the case of the divorce”
of the NH and Jalanben.
Finally, the NH explained in his August 2011 statement that he did not list his marriage
to Jalanben on his application for retirement benefits because “it was not considered
a legal marriage,” so he instead referenced the marriage in the remarks portion of
the application. It is our understanding, however, that the NH is not contesting Jalanben
entitlement to divorced spouse benefits. Indeed, he has provided two detailed statements
to the agency offering details of the marriage and divorce to support Jalanben entitlement
to divorced spouse’s benefits.
ANALYSIS
Entitlement to Divorced Spouse’s Benefits
A claimant may be entitled to benefits as a number holder’s divorced spouse under
the Act if the claimant can show, among other things, that the claimant was validly
married under state law to the NH for 10 years immediately before the date the divorce
became effective. [10] Sections 202(b), 216(d)(1), and 216(h)(1)(A)(i) of the Act; 20 C.F.R. §§ 404.331(a),
404.345; POMS RS 00202.001, RS 00202.005, GN 00305.005. The Act provides that a claimant is validly married to a number holder for Social
Security purposes if, at the time the application is filed, the courts of the state
in which the number holder had a permanent home at the time of filing would find that
the claimant and the number holder were validly married.[11] Section 216(h)(1)(A)(i) of the Act; 20 C.F.R. §§ 404.331, 404.345; POMS RS 00202.001(A); GN 00305.005(B). Because the NH was domiciled in Texas at the time Jalanben filed the application,
we look to Texas state law to determine whether their marriage and divorce was valid.
Texas Would Apply India’s Laws to Determine the Validity of the
Marriage and Divorce [12]
Because their marriage and divorce took place in India and because application of
the laws of Texas and India would likely result in differing outcomes, a choice of
law analysis is required. Thus, the initial question is whether Texas would apply
the laws of India or Texas in determining the validity of this marriage and divorce
between the NH and Jalanben. Historically, in choice of law decisions, Texas courts
applied the law of the place of marriage or divorce to determine its validity (the
place of celebration test). See Braddock v. Taylor, 592 S.W.2d 40, 42 (Tex. Civ. App. – Beaumont 1979, writ ref’d n.r.e.); Portwood v.
Portwood, 109 S.W.2d 515 (Tex. Civ. App. – Eastland 1937, writ dismissed). However, the Texas
Supreme Court held in Duncan v. Cessna
Aircraft Co., 665 S.W. 2d 414 (Tex. 1984), Texas should follow the Restatement (Second) of Conflicts’
most significant relationship test in choice of law cases, except where the parties
have agreed to a valid choice of law clause. Section 6 of the Restatement (Second)
of Conflicts sets forth the following choice of law principles:
(1) a court, subject to constitutional restrictions, will follow a statutory directive
of its own state on choice of law;
(2) when there is no such directive, the factors relevant to the choice of the applicable
rule of law include:
(a) the needs of the interstate and international systems,
(b) the relevant policies of the forum (the place of the trial),
(c) the relevant policies of other interested states and the relevant interests of
those states in the determination of the particular issue,
(d) the protection of justified expectations,
(e) the basic policies underlying the particular field of law,
(f) certainty, predictability, and uniformity of result, and
(g) ease in the determination and application of the law to be applied.
In applying the most significant relationship test, it is not the number of contacts
with a particular state or country that determines which law controls; rather it is
the qualitative nature of the particular contacts. D~, 665 S.W.2d at 421.
Following D~, Texas courts of appeals have applied the most significant relationship test to choice
of law questions in the context of marriage and divorce. See Seth v. Seth, 694 S.W.2d 459, 462-64 (Tex. App. – Forth Worth 1985, no writ). Thus, we must utilize
the Restatement factors of the most significant relationship test to determine whether
a Texas court would apply Texas or Indian law in deciding the validity of the NH’s
and Jalanben Indian marriage and divorce.
As addressed in detail in our prior opinion dated March 9, 2012, the S~
case offers helpful guidance in examining how a Texas court would analyze the present
facts under the significant relationship test. S~, 694 S.W.2d 459. The S~ case addressed the question of whether Islamic law or Texas law should apply to divorce
proceedings in Texas, where prior marriage and divorce ceremonies also at issue all
occurred under Islamic law in India and Kuwait. The S~ court determined that the Restatement factors of the relevant policies of the forum
(Texas) and the protection of the parties’ justified expectations required application
of Texas law to resolve the issues raised by the marriage and divorce ceremonies that
occurred in Kuwait and India. Id.
at 462-464. We determined that, under the specific circumstances and facts of the
present matter, these same two Restatement factors require applying India’s laws to
determine the validity of the NH’s and Jalanben marriage and divorce. Further, we
determined that a majority of the remaining Restatement factors also support applying
India’s laws. Accordingly, as addressed in our prior opinion dated March 9, 2012,
we believe that a Texas court, in weighing the Restatement factors of the most significant
relationship test with the specific facts of this matter, would find that India’s
laws should be applied to determine the validity of the NH’s and Jalanben marriage
and divorce. [13] Therefore, we must apply Hindu law from the 1950s and 1960s to determine the validity
of the marriage and divorce.
The 1951 Marriage is Valid Under Application of Hindu Marriage Laws
The Law Library of Congress Provided Information on Hindu Marriage Laws of
the 1950s
Consistent with our established practice when a legal opinion request involves interpretation
of foreign law, we sought guidance from the Law Library of Congress regarding the
laws of marriage and divorce in India applicable to Hindus in the 1950s and 1960s.
See Law Library of Congress, India, Hindu Marriage and Divorce Laws, No. 2012-008337 (August
2012) (attached); Law Library of Congress, India, Hindu Marriage and Divorce Laws,
No. 2012-007370 (February 2012) (attached).[14] In the February 2012 report in response to our initial request for assistance, the
Law Library of Congress explained that a Hindu marriage in India is not valid unless
it is solemnized with proper ceremonies and rites. The Law Library of Congress was
unable to provide information regarding the validity of the NH’s and Jalanben marriage
based on the limited information initially provided in the NH’s August 2011 statement
and the relatives’ affidavits. Thus, in our March 9, 2012 opinion, we requested additional
information regarding the NH’s and Jalanben caste and community, as well as a description
of the customs involved, the form of their marriage, the specific wedding ceremonies
involved, and the arrangement process and the role of guardians. We also asked for
information needed to determine that the parties were not related and the marriage
was not bigamous.
Further, in this February 2012 report, the Law Library of Congress explained that
it was unable to provide information regarding the validity of the NH’s and Jalanben
divorce also due to incomplete information. Thus, in our March 9, 2012 opinion, we
requested additional information on the actual process of the divorce, including a
description of the custom of divorce in their caste and community; a description of
any ceremonies, rites, and rituals performed; who authorized or declared the divorce;
whether the divorce was based upon mutual agreement; the grounds or basis for the
divorce; and whether any paperwork was completed, such as a deed of release.
The agency sought to further develop the record by conducting a telephone interview
and obtaining a second statement from the NH in May 2012. With this additional information,
we again sought information from the Law Library of Congress, which responded on August
31, 2012. The following analysis is based upon the August 2012 Law Library of Congress
report.
Because the 1951 Ceremony is the Solemnized Marriage Ceremony, Uncodified
Hindu Law and Customs of the Rabari Caste Apply to Determine the Validity of the
Marriage
As noted, a solemnized marriage ceremony is required for a valid Hindu marriage. The
Law Library of Congress noted that after India gained independence from Britain in
1947, attempts were made to modernize Hindu legal tradition through codification,
and that in the 1950s and 1960s, the Hindu Marriage Act of 1955 was the predominant
legislative framework for the regulation of Hindu marriage and divorce in India. Further,
the Bombay Registration of Marriages Act of 1953 was in force in the State of Bombay,
which at the time included the territory of Gujarat, where the NH and Jalanben lived
at the time of their marriage. Prior to 1955, however, uncodified Hindu law and custom
was the prevailing framework regulating family matters, including marriage and divorce
in India. Thus, to determine the applicable Hindu law, the initial question was whether
the 1951 ceremony or the 1958 ceremony was the solemnized marriage ceremony.
In his August 2011 statement, the NH referred to the 1951 ceremony as “the original
promise ceremony,” indicating it was a betrothal (sagai) or engagement ceremony. However,
in his May 2012 statement, the NH explained in detail that the 1951 ceremony was a
solemnized wedding ceremony and that he and Jalanben were married after that ceremony.
Both affidavits provided by the NH’s relatives also refer to the 1951 ceremony as
the solemnized marriage ceremony, state that the marriage began in 1951, and do not
mention the second ceremony in 1958 or 1959. Accordingly, based on the evidence provided,
the 1951 ceremony was the solemnized marriage ceremony between the NH and Jalanben.
The NH further stated that he and Jalanben were both of the Karamsinh, Rabari caste.
Thus, because the 1951 ceremony is the solemnized marriage ceremony, the Law Library
of Congress indicated that uncodified Hindu law and custom and relevant customs of
the Rabari caste would apply in analyzing this issue of the validity of the marriage
and divorce of the NH and Jalanben.
The 1951 Marriage Ceremony Is a Solemnized Marriage Ceremony that Is
Consistent With Hindu Law and the Rabari Caste Customs
The Law Library of Congress stated that under Hindu law, a solemnized marriage ceremony
is required and all essential ceremonies, rites, and rituals must be performed to
establish a valid Hindu marriage. See T.P. GOPALAKRISHNAN, HINDU MARRIAGE LAW at 46 (2d ed. 1959) (stating that ceremonies
“of some sort are absolutely essential” to a Hindu marriage; “[a]s the ceremonies
are so elaborate, and as custom sanctions variations in the ceremonies, law does not
require strict proof of performance of ceremonies in every case. When it’s shown that
a marriage has been performed in fact there would be a presumption that it was regularly
performed in accordance with law.”); D.H. CHAUDHARI, THE HINDU MARRIAGE ACT, 1955
at 90 (3d ed. 1966) (stating that, “[m]arriage ceremonies vary[,] indeed in some cases,
vary considerably, from one place to another and from one community to another. .
. . Where the custom of the caste to which the parties belong observes certain ceremonies,
those ceremonies should be observed); SATYAJEET A. Karamsinh, PRINCIPLES OF HINDU
LAW at 663 (7th ed. 2000) (a marriage may be completed by the performance of ceremonies
in accordance with the custom of the caste to which the parties belong). As noted,
the evidence indicates that the 1951 ceremony is the solemnized marriage ceremony.
Thus, the focus is upon determining whether the 1951 ceremony as described by the
NH is consistent with applicable customs, ceremonies, rites, and rituals.
The Law Library of Congress located some information on the local customs and practices
of marriages of the Rabari caste. See Eiluned , Marriage and Dowry Customs of the Rabari Kutch: Evolving
Traditions in Wedding Dress Across Cultures 72 (Helen Bradley Foster & Donald Clay Johnson eds.,
2003); S.K. Nandi, Rabari, in 22 People of India: Gujarat: Part Three 1160 (Kumar Suresh Singh & Rajendra Behari
eds., 2002); Robyn, Wandering With India’s Rabari, 184(3) National Geographic 80 (Sept. 1993). The Law Library of Congress concluded
that the NH’s description of the 1951 marriage ceremony and the description of the
ceremony in the two affidavits of relatives were more or less consistent with uncodified
Hindu law and the local customs and practices of the Rabari caste.
The Lack of Registration Does Not Invalidate the 1951 Marriage
Prior to the Bombay Registration of Marriages Act of 1953 and the Hindu Marriage Act
of 1955, there was no marriage registration system. Thus, the lack of registration
of the 1951 marriage does not impact the validity of the marriage under India’s laws.
The Underage Status of the NH and Jalanben Does Not Invalidate the 1951
Marriage
Regarding the underage status of the NH and Karamsinhi at the time of 1951 marriage,
the Law Library of Congress stated that the underage status of the parties to the
arranged marriage does not affect its validity and does not by itself render a marriage
void or voidable under India’s laws. The Law Library of Congress concluded that child
marriages appeared to be consistent with Hindu law and the customs of the Rabari people
at the time of their marriage. Thus, the underage status of the NH and Karamsinhi
does not render their 1951 marriage invalid under India’s laws.
The NH and Jalanben Were Validly Married in 1951 Under Hindu
Law
In summary, the evidence provided indicates that the NH and Jalanben were validly
married in 1951 in accordance with Hindu custom. Following the second ceremony in
1958 or 1959, the NH stated that he and Jalanben began living together with his family
as was also customary. They had a son in 1964 and lived together for a total period
of ten or eleven years until their divorce in 1969, at which time the NH moved to
the United States. As the Law Library of Congress noted, there is “an extremely strong
presumption of favour of the validity of a marriage and the legitimacy of its offspring
if from the time of the alleged marriage the parties are recognized by all persons
concerned as man and wife.” See SATYAJEET A. JALANBEN, PRINCIPLES OF HINDU LAW at 664. Based on the evidence provided
and the Law Library of Congress’s report, we believe a Texas court, applying the applicable
Hindu law, would find that the NH and Jalanben had a valid marriage in India beginning
in 1951 with the first ceremony. See R.M. v. S.R.M., 867 N.Y.S.2d 378 (N.Y. Sup. 2008) (applying Hindu law and determining that the
plaintiff and defendant, members of the Kamma subcaste and Sudra caste, were validly
married in accordance with their caste customs in India in 1952). Accordingly, under
the Act, the NH and Jalanben had a valid marriage beginning 1951. [15]
The 1969 Divorce is Valid Under Application of Hindu Divorce
Law
The evidence indicates that the NH and Jalanben obtained a divorce from community
leaders in 1969 by making a declaration of divorce, as was their community’s custom.
The affidavit evidence from relatives corroborated the NH’s statements regarding divorce.
The Law Library of Congress stated that general Hindu law does not recognize divorce.
However, the Law Library of Congress explained that parties to a Hindu marriage could
obtain dissolution of the marriage in accordance with a valid custom. See SATYAJEET A. Karamsinh, PRINCIPLES OF HINDU LAW at 666; Hindu Marriage Act of 1955,
§ 29. A divorce by custom requires mutual agreement of the parties to the marriage
to terminate the marriage. See D.H. CHAUDHARI, THE HINDU MARRIAGE ACT, 1955 at 352-353 (also noting that a divorce
according to a caste custom is generally followed by a deed of release).
The Law Library of Congress also found information indicating that, unlike some Hindu
communities, the Rabari caste appears to recognize divorce. See
S.K. Nandi, Rabari, in 22 PEOPLE OF INDIA: GUJARAT: PART THREE 1159 (Kumar Suresh
Singh & Rajendra Behari eds., 2002); Robyn , Wandering With India’s Rabari, 184(3)
NATIONAL GEOGRAPHIC 80 (Sept. 1993). According to an anthropological survey, either
spouse can divorce due to maladjustment or incapability to earn a livelihood. See S.K. Nandi, Rabari, in 22 PEOPLE OF INDIA: GUJARAT: PART THREE 1159 (Kumar Suresh
Singh & Rajendra Behari eds., 2002).
Although the NH provided additional facts describing the custom of divorce for his
community and the process of his and Jalanben divorce, the Law Library of Congress
was unable to find information on the process and particulars of the relevant customs
of the Rabari caste to conclude that the NH’s and Jalanben divorce process was consistent
with custom. However, in light of the Law Library of Congress’s confirmation that
the NH and Jalanben had a valid marriage pursuant to their custom, that a divorce
by custom is permissible under Hindu law, and that the Rabari caste recognized the
practice of divorce, we believe that a Texas court would likely have sufficient information
to find that the NH and Jalanben obtained a valid divorce by custom in 1969. Accordingly,
under the Act, the NH and Jalanben were divorced effective December 1969.
The 1969 Divorce is Valid Under Application of Principles of
Equity
Even if, however, a Texas court was unable to determine with certainty the validity
of their divorce under India’s laws based on the information available regarding the
divorce process of the Rabari caste, we believe a Texas court would uphold the divorce
as valid. We believe a Texas court would look at the totality of the evidence and
apply equitable doctrines of estoppel or laches based on the following factors: the
parties’ domicile in India at the time of their marriage and divorce, the parties’
mutual consent and participation in their divorce, the passage of time since their
divorce, the NH’s reliance on the divorce when he remarried in 1973, and the NH’s
current marriage lasting 39 years. See Social Security Ruling (SSR) 91-4, 1991 WL 298378 (S.S.A. June 25, 1991) (the agency
considered the issue of whether Texas would recognize as valid a Haitian divorce decree
and whether a claimant who was a party to the divorce would be estopped from denying
its validity, concluding that whether or not a Texas court would recognize the Haitian
divorce, the claimant would be estopped from challenging its validity); see also Memorandum from Regional Chief Counsel, Denver Region VIII, to Center for Operations
and Systems Support, Denver/Dallas RSI Team, Marital Status of Zora (May 15, 2000)
(concluding that a Colorado or Maryland court would likely apply the doctrine of laches
and/or estoppel and bar the claimant from contesting the validity of a Haitian divorce
obtained almost 25 years prior, particularly given that the claimant had since remarried
in reliance on the divorce); Memorandum from Regional Chief Counsel, Philadelphia
Region III, to Ass’t Reg. Comm. – MOS, Philadelphia, Validity of Dominican Republic
Divorce NH: Thomas , Claimant: Cynthia (May 27, 2003) (concluding that a Virginia
court would probably accept the Dominican Divorce as valid under the equitable doctrine
of estoppel by laches, and as such, the claimant would qualify for divorced spouse’s
benefits). We note that the agency’s operating instructions also comport with this
conclusion. See POMS GN 00305.175(A)(2) (a person may be estopped from denying the validity of a divorce if he or she
was the plaintiff in the divorce action; was the defendant and accepted the court’s
jurisdiction; remarried after the divorce; accepted property, money, or a settlement
on the basis of the divorce decree; or otherwise accepted or acted in recognition
of the decree as valid (e.g., knew of the divorce and allowed it to stand unchallenged
for a long time)). Accordingly, the following factors support our conclusion that
a Texas court would uphold the validity of the divorce on principles of equity.
The first factor in support of upholding the validity of the divorce is the parties’
connection to India during their marriage and at the time of the divorce. The NH and
Jalanben were residents of India at the time of their marriage and divorce. Jalanben
continued to live in India for many years after the divorce. India properly had jurisdiction
of this matter. See SSR 91-4, at 3 (a key factor which a Texas court would consider in determining whether
to give effect to a foreign divorce decree is whether the parties to the divorce were
domiciled in the foreign country when the decree was entered), citing Williams v. North
Carolina, 325 U.S. 226(1944) (“[u]nder our system of law, judicial power to grant a divorce
- jurisdiction strictly speaking - is founded on domicile .... Domicile implies a
nexus between person and place of such permanence as to control the creation of legal
relations and responsibilities of the utmost significance”). This is not a case in
which one party to a marriage surreptitiously traveled to a foreign country having
no connection to either party to the marriage for the sole purpose of obtaining a
divorce. Instead, this matter involves a marital relationship between citizens of
India that took place entirely in India. Therefore, a Texas court would likely find
that this factor supports upholding the divorce as valid under principles of equity.
A second factor in support of upholding the validity of the divorce based on principles
of equity is the parties’ consent to their divorce. The evidence indicates that the
NH and Jalanben participated together in the divorce process, mutually agreed upon
the divorce, and consented to the divorce pursuant to their custom. There is no evidence
that either party procured the divorce fraudulently or through duress. See SSR 91-4 at 4 (noting that Texas courts have generally held that, where the parties
to a foreign divorce have consented to the divorce and have submitted to the jurisdiction
of the foreign court, they will be estopped from collaterally attacking the judgment;
the agency concluded that the claimant’s consent to the divorce would be sufficient
to allow a Texas court to estop the claimant from challenging its validity as there
were no allegations of duress or coercion), citing Dunn v. Tiernan, 284 S.W.2d 754 (Tex. Civ. App. – El Paso 1955, writ ref’d n.r.e.) (applying doctrines
of equitable estoppel and laches, the court held that the husband, who obtained bilateral
divorce in Mexico was estopped from later denying the validity of the Mexican divorce
given the lapse in time and the wife’s action in reliance upon the divorce). Thus,
this factor weighs in favor of upholding the divorce.
A third factor in support of upholding the validity of the divorce is the length of
time which has expired since the divorce was rendered, and the NH’s reliance upon
the validity of the divorce with his remarriage. See SSR 91-4 at 4-5 (noting that because more than 10 years elapsed between the date
of the divorce and the date the claimant applied for benefits, a Texas court could
apply laches against the claimant, particularly where there is also evidence of a
resulting disadvantage to another, such as a remarriage during the lapse in time).
Over 40 years has passed since the divorce in 1969, and it is our understanding that
no one has contested this divorce during this great passage of time. The NH and Jalanben
have lived separately during this entire period of time, as the NH moved to the United
States in 1969. Further, the NH relied upon the validity of the dissolution of his
marriage to Jalanben when he married his present wife, Urmillawat Karamsinh, in the
United States on June 25, 1973. The NH has remained married to Urmillawat Karamsinh
since that time. The NH and Urmillawat Karamsinh have in good faith believed that
they are married and have been living together in Texas as a married couple for almost
40 years. Texas has an interest in upholding the marriage between the NH and Urmillawat
Karamsinh. The presumption of the validity of the most recent marriage is one of the
strongest under Texas law. Texas Employer's Ass'n v.
Elder, 282 S.W.2d 371, 373 (Tex. 1955); Schacht v.
Schacht, 435 S.W.2d 197, 201 (Tex.Civ. App. - Dallas 1968, no writ). Accordingly, the length
of time and the NH’s reliance upon the divorce with his remarriage supports upholding
the validity of his divorce from Jalanben based on principles of equity.
Finally, we note that no one is challenging the validity of the divorce between the
NH and Jalanben. Jalanben is presently of the position that she is the NH’s divorced
spouse as she has applied for divorced spouse’s benefits. The NH has willingly supplied
two detailed statements to the agency in support of Jalanben application for divorced
spouse’s benefits on his record.
Therefore, based on the totality of the evidence and our extensive research, we believe
a Texas court would ultimately uphold as valid the NH’s and Jalanben divorce, whether
by finding it valid pursuant to India’s laws or through applying principles of equity.
Accordingly, under the Act, the NH and Jalanben had a valid divorce effective in December
1969.
CONCLUSION
As addressed in our prior legal opinion dated March 9, 2012, we believe the State
of Texas would apply India’s laws relevant to Hindu marriage and divorce in the 1950s
and 1960s to determine whether the NH and Jalanben were validly married and subsequently
validly divorced. As explained above, based on the totality of the circumstances in
this particular case and information obtained from the Law Library of Congress regarding
the applicable Hindu law, we believe a Texas court would find that the NH and Jalanben
were validly married in 1951 and validly divorced in 1969.
Michael McGaughran
Regional Chief Counsel
By: ___________________________
Shalyn Timmons
Assistant Regional Counsel